The appellant was charged with and convicted of manslaughter in the second degree.
The indictment charges that the appellant unlawfully, but without malice or intention to kill, killed Elmer Paul Jacobs by negligently running over, upon, or against him with an automobile, against the peace and dignity of the state of Alabama.
A jury fixed the appellant's punishment at hard labor for the county for five months, and the appellant brings the case here for review.
In his oral charge to the jury, the learned trial judge instructed them as follows:
"Now, is he guilty or not guilty as charged in the indictment? The evidence here tends to show that the deceased was killed by this defendant striking him or running over him with an automobile or truck, an auto truck. Did he violate the law when he ran upon him or ran over him with the truck? Was he violating the law at that time? Was he running at a greater rate of speed than the law permitted him to run? If he was, he would be guilty as charged in the indictment." *Page 451
The appellant reserved an exception to the following part of said charge:
"Was he running at a greater rate of speed than the law permitted him to run? If he was, he would be guilty as charged in the indictment."
It is now urged by appellant (1) that the mere violation of a speed ordinance, without more, by the operator of an automobile, is not sufficient to support a conviction of manslaughter in the second degree; (2) that the portion of the charge, to which exception was reserved, eliminated all questions of the proximate cause of the killing, and eliminated appellant's theory of an unavoidable accident; and (3) makes a mistake in judgment on the part of appellant amounting to crime.
Section 21 of the Motor Vehicle Law (Acts 1911, p. 642), in force and effect at the time this appellant was indicted and convicted, provides as follows:
"Speed permitted: No person shall operate a motor vehicle upon the public highways of this state recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property, or the life or limb of any person; provided that a rate of speed in excess of thirty miles per hour for a distance of a quarter of a mile shall be presumed evidence of traveling at a rate of speed which is not careful and prudent."
An ordinance of the city of Birmingham, referred to in the oral charge of the trial court, of which the courts of the state are required to take judicial notice, in section 42, provides:
"It shall be unlawful for any person to drive or cause to be driven any motor vehicle upon any public highway in the city of Birmingham at a greater rate of speed than the following:
"(a) At or over any street intersection, 12 miles per hour.
"(b) Between intersections in the loop area, 18 miles per hour.
"(c) Elsewhere, other than places enumerated under (a) and (b) of this section, 25 miles per hour; and it shall be unlawful for any person to so operate any motor vehicle upon the highways in the city of Birmingham as to be unable to prevent striking any pedestrian or vehicle upon such highway."
The concrete question is thus presented to this court by the exception to the court's oral charge: Does the violation of a speed regulation, without more, resulting in the death of a person on a highway, constitute manslaughter in the second degree?
In Alabama it is well settled that a violation of a statute or an ordinance is negligence per se. Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471.
But homicide may result from carelessness of such low degree or trivial character in the performance of a lawful act, carelessly performed, as not to involve criminality in the person so carelessly performing the act. Fitzgerald v. State,112 Ala. 34, 20 So. 966. While the violation of a speed regulation is negligence per se, it is not per se such gross or wanton negligence as is necessary to constitute manslaughter in the second degree where death results. In the case last cited, our Supreme Court said:
"A consideration of the principles upon which criminal responsibility for the results of carelessness rests will impress the student 'with the general truth, that in the criminal department, as well as in the civil, our law, under proper circumstances, declines to take into its account things trivial and small.' * * * Our own adjudications are in line with these texts, and always predicate criminality, not upon mere negligence or carelessness, but upon that degree of negligence or carelessness which is denominated 'gross,' and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of that indifference to consequences which in some offenses takes the place of criminal intent. Thus, in Hampton v. State, 45 Ala. 82, it is said: 'There must be a criminal intent or negligence so gross as to imply it.' And in White v. State, 84 Ala. 421, 423 [4 So. 598], is this language: 'Gross carelessness, even in the performance of lawful acts, is punishable, if another is injured thereby.' There can, we therefore think, be no doubt upon authority and principle that homicide may result from carelessness of such low degree or trivial character in the performance of a lawful act as not to involve criminality in the person so carelessly performing the act; and it follows that criminality cannot be affirmed of every lawful act, carelessly performed, and resulting because of such carelessness in the death of another. The carelessness must be aggravated, so to speak; it must be gross, implying an indifference to consequences."
In 29 C.J. p. 1154, § 141, the text declares the law to be as follows:
"Negligence. In general. As has been noted, involuntary manslaughter may consist in the doing of a lawful act in an unlawful manner, and hence, where an unintentional homicide is occasioned by the gross or culpable negligence of defendant, although in the commission of an act lawful in itself, it is manslaughter, and under some statutes involuntary manslaughter is defined as including a homicide in the commission of a lawful act without due caution or circumspection. While the kind of negligence required to impose criminal liability has been described in different terms, it is uniformly held that it must be of higher degree than is required to establish negligence upon a mere civil issue, and it must be shown that a homicide was not improbable under the facts as they existed which should reasonably have influenced the conduct of accused."
In State v. Clark, 196 Iowa, 1134, 196 N.W. 82, the Supreme Court of Iowa very recently had this question before it, and in disposing of it said:
"In effect the jury was told that a violation of this ordinance was such an unlawful act as *Page 452 would render the defendant guilty of manslaughter if the death of Edna Morgan resulted by reason thereof. Clearly the driving of the car at a rate of speed in violation of a city ordinance would not per se make the defendant guilty of manslaughter, even though the death of a person did result therefrom. State v. Moore, 129 Iowa, 514, 106 N.W. 16."
To the same effect are People v. Barnes. 182 Mich. 179,148 N.W. 400; Dunville v. State, 188 Ind. 373, 123 N.E. 689; State v. Tankersley, 172 N.C. 955, 90 S.E. 781, L.R.A. 1917C, 533.
We think the rule recognized by the authorities, ante, is well founded, and that proof that shows no more than the death of a person resulting from a violation of a speed regulation is wholly insufficient to authorize a conviction for manslaughter in the second degree.
This court has heretofore observed that the degree of care to be observed by the operator of a motor vehicle on a public highway, "is that care which a reasonably prudent man would observe under like circumstances" (Bailum v. State, 17 Ala. App. 679,88 So. 200); and our Supreme Court has recognized that reasonable care is a relative term, saying:
"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,' 'reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court. Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 682,36 L.Ed. 485." Reaves v. Maybank, 193 Ala. 618, 69 So. 138.
When a speed limit is fixed by law, the law assumes that it is reasonable, and that a reasonably prudent man will stay within the limit, but, if it appears that a citizen violates or exceeds the speed limit, and a person is killed as a result, the law will not authorize a jury to infer, or a court to say from that fact alone, that manslaughter in the second degree has been committed.
Under the evidence in this record, it was open to the jury to find that the death of the deceased might have occurred just the same if the appellant had been running at the most careful rate of speed as it would were he running 30 miles per hour. It was not unlawful for appellant to operate his truck at a rate of speed that was "reasonable and proper," not exceeding 25 miles per hour. If perchance, as it was open to the jury to find under the evidence, appellant was operating his truck a few miles per hour faster than what was "reasonable and proper," but not in excess of 25 miles per hour, then this part of the court's charge makes a mere error in judgment as to what was reasonable and proper, on the part of appellant, amount to crime. This is not the law. State v. Tankersley, 172 N.C. 955,90 S.E. 781, L.R.A. 1917C, 533; People v. Barnes, 182 Mich. 179,148 N.W. 400.
That part of the court's oral charge to which exception was reserved is erroneous for another reason; that is to say, it takes away from the jury all question of the act of the appellant being the proximate cause of the death of the deceased.
By this statement, the jury was instructed that, if appellant was running at a greater rate of speed than the law permitted him to run, then he was guilty of manslaughter in the second degree because he admittedly killed the deceased. This was in effect saying that the excessive speed, if there was such, was, as a matter of law, the proximate cause of the deceased's death.
By statute in this state, a trial judge is forbidden to charge on the effect of the evidence ex mero. Code, § 9507.
While a person engaged in the commission of an unlawful act is legally responsible for all of the consequences which may naturally or necessarily flow or result from such unlawful act, before this principle of law can have any application under the facts in this case, it must appear to the trior of fact that the death of the deceased was the natural or necessary result of the act of the appellant in operating his truck at an unlawful rate of speed, if such was the case. If the negligent conduct of the deceased, if such it was, in failing to look for approaching automobiles, before suddenly throwing himself from a place of safety immediately in front of a rapidly approaching motor vehicle was the sole cause of his death — that is to say, if the appellant had been exercising all the care required by law in the operation of his truck, and notwithstanding the deceased would have been killed just as he was killed — then the conduct of the appellant would not have been the proximate cause of the homicide, and under the law he would not be liable criminally for what occurred. Dunville v. State, 188 Ind. 373,123 N.E. 689. All of these matters *Page 453 were for the jury to decide from the evidence in the case. A case almost on all fours with the case at bar, where the authorities are exhaustively reviewed, may be found in the report of the case of People v. Barnes, 182 Mich. 179,148 N.W. 400, by the Supreme Court of Michigan.
It results from what has been said that the portion of the oral charge of the court below, to which exception was reserved, is erroneous and must work a reversal of the case. We deem it unnecessary to discuss other matters urged by appellant, further than to say that the relevancy of the evidence of the deceased's connection with the army does not appear in this record. That evidence should have been excluded. The other questions may not arise on a retrial of this case.
Reversed and remanded.